Easements Overview, Creating and Terminating Easements,
An easement is an interest in another person's property. It gives a non-owner the right to use a part of someone else's property for a specific reason. Property owners may continue to use the portion of the property covered by the easement for their own use, but may not interfere with the easement holder's use. Owners can stop any other people from using it. The easement holder may only use the property for a specific purpose and has no further rights to the property, including occupying or preventing others' use of the property. An exception would be if others' use interferes with the easement holder's use. Easement holders can repair or improve the property covered by the easement, as long as it does not interfere with the property owner's rights.
Types of Easements
There are two basic types of easements. Appurtenant easement: This type involves two neighboring parcels of land, with the owner of one having an easement to the other. The easement holder is the "dominant estate," while the property containing the easement is the "servient estate." Easements are attached to the dominant estate and usually "pass with the land," meaning that future owners automatically benefit. Sometimes the transfer documents for the dominant estate will state that the easement does not pass with the land. A common example of an appurtenant easement is when the owner of a landlocked piece of land has the right to cross a neighbor's property to get to his. Easement in gross: The holder of this type of easement does not own neighboring property, so there is no dominant estate. There is only a servient estate, which the easement holder has the right to use. Utility companies generally have easements in gross allowing them to run pipes through your property as necessary. It also gives them the right to replace and repair lines already there. Other easement in gross examples include hunting or camping rights. Most easements in gross are not transferable, although some states do allow it. Utility company easements are usually transferrable.
Positive and Negative Easements
Easements may also be positive or negative: - Positive easement: This is the most common type and permits the use of someone else's land. - Negative easement: This less common easement limits what the owner of a nearby property may do to that property. Property owners sometimes request a negative easement to preserve a view or access to light.
Creating and Terminating Easements
Most easements are created with a legal document. It may be part of a deed or a separate contract. Occasionally, courts create an easement by implication after considering the circumstances. For example, the owner of a landlocked piece of land needs access to get in and out from it in some way, so a court would imply an easement of necessity. The court may also imply an easement from a quasi-easement, based on prior use of the land for a specific purpose. Easements are typically created to be permanent, although sometimes a temporary circumstance requires creation of a temporary easement. Either side can also terminate easements in some situations, including: - The easement holder gives up the right to the easement in writing - The owner of the dominant estate buys the servient one - The easement holder abandons it, although this can be hard to prove
If you hold or want to create an easement, or are considering buying property involved with an easement, an attorney who specializes in land use can help you understand and preserve your rights.